Leteve #277278 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Andre Michael Leteve,
Plaintiff,
v.
Ryan Thornell, et al.,
Defendants.
No. CV-25-00622-TUC-JGZ
ORDER
Pending before the Court is Plaintiff’s Motion for Leave to File an Amended
Complaint. (Doc. 16.) The Court will grant Plaintiff’s Motion1 and screen Plaintiff’s First
Amended Complaint under 28 U.S.C. § 1915A(a).
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or an officer or an employee of a governmental entity. 28
U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has
raised claims that are legally frivolous or malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who is immune from such relief.
Id. § 1915A(b)(1)–(2).
1 “A party may amend its pleading once as a matter of course no later than . . . 21 days
after serving it, or . . . 21 days after service of a responsive pleading.” Fed. R. Civ. P.
15(a)(1)(A)–(B). Defendant Thornell was served on April 3, 2026, (see Doc. 18), and as of
the filing date of this Order, no defendant has appeared or filed a responsive pleading.
Additionally, the Court’s first screening order contemplated amendment pursuant to Rule
15. (See Doc. 8 at 17.) Thus, the Court grants Plaintiff leave to amend to the extent leave
of court is required given this posture.
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A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does
not demand detailed factual allegations, “it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for
relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual
allegations may be consistent with a constitutional claim, a court must assess whether there
are other “more likely explanations” for a defendant’s conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts
must “continue to construe [self-represented litigant’s] filings liberally.” Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a self-represented prisoner] ‘must
be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
II. Discussion
Plaintiff’s original Complaint asserted three counts against Defendants Arizona
Department of Corrections, Rehabilitation & Reentry (ADCRR) Director Ryan Thornell,
ASPC-Tucson Warden Jorge Martinez and Deputy Warden Danny Mendoza, and Sergeant
Mario Tuccino.2 (See Doc. 1.) In a December 8, 2025 Order, the Court screened Plaintiff’s
2 In the caption and when listing defendants, Plaintiff names Sergeant “Mario Tuccino,”
(Doc. 1 at 1–2), but when describing the facts supporting his claims, Plaintiff names
Sergeant “Toccino,” (see id. at 4–5). In documents attached to the original complaint, the
official’s name is spelled “Tussino.” (See, e.g., id. at 33–34, 49.) The Court will refer to
Defendant “Tuccino” because that spelling is found in the caption of the complaint and on
the docket.
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original Complaint pursuant to 28 U.S.C. § 1915A(a). (Doc. 8.) The Court ordered
Defendant Martinez to answer Count Two and Defendant Thornell to answer Count Three,
in their official capacities only. (Id. at 9, 17.) The Court dismissed Plaintiff’s remaining
claims and Defendants Mendoza and Tuccino without prejudice. (Id. at 8–15, 17.)
In his First Amended Complaint (FAC), Plaintiff adds to his allegations in Count
One and leaves Counts Two and Three unchanged. (See Doc. 16.) Although an “amended
complaint supersedes the original, the latter being treated thereafter as non-existent,”
Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (citation
omitted), the Court’s reasoning and conclusions in the initial screening order remain
applicable to Counts Two and Three of the FAC, which are unchanged from the original
complaint. See Antonetti v. McDaniels, No. 16-CV-00396, 2018 WL 11362954, at *2 n.3
(D. Nev. May 25, 2018) (“With respect to the counts that Plaintiff has not amended, the
Court’s rulings from the original screening order . . . apply.”). Thus, the Court incorporates
its initial holdings regarding Counts Two and Three by reference, (see Doc. 8 at 9, 12–15,
17), and will screen Count One of the FAC.3
A. Count One
In Count One, Plaintiff raises a claim regarding his due process rights and access to
the courts. Plaintiff makes the following allegations. He ordered a two-volume legal
resource to assist his attorney in his post-conviction proceedings,4 received the books in
2021, and received annual updates in 2023 and 2024. (Doc. 16-1 ¶¶ 2–3, 15.)5 After he was
moved to ASPC-Tucson, he purchased the 2025 update, which was shipped to
him. (Id. ¶ 4.) Although Defendant Tuccino signed for the shipment, Plaintiff did not
receive the update. (Id. ¶¶ 4–5.) In violation of ADCRR policy, contraband forms were not
3 Because the only change to Count One between the FAC and original complaint is the
addition of Paragraph 5.1, the analysis of Count One that follows is largely, but not entirely,
duplicative of the initial screening order’s analysis of Count One. (See Doc. 8 at 7–12.)
4 Plaintiff states he was sentenced to death, is not constitutionally entitled to assistance of
counsel in his proceedings seeking post-conviction relief, and uses the legal resource to file
his own motions. (Doc. 16-1 at 4, ¶¶ 1, 14–15.)
5 Plaintiff’s factual allegations supporting Count One begin in numbered paragraphs on
page 4 of the FAC. (Doc. 16-1 at 4.) Citations to paragraph numbers in this Section refer
to those paragraphs, rather than the numbered paragraphs in preceding sections of the FAC.
(See id. at 4–8.)
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filled out and given to Plaintiff, Plaintiff was not given an opportunity to appeal, and
Defendant Tuccino “refused to fill out the package tracking document for all
documents/items arriving in the mailroom.” (Id. ¶¶ 5, 6.) The annual update was not
returned to the publisher, and Plaintiff believes the update was destroyed. (Id. ¶¶ 6, 13.)
Plaintiff filed a grievance regarding Defendant Tuccino’s alleged violations of his
rights to due process and access to the courts and “right to participate in his capital
appeals.” (Id. ¶ 7.) The Department’s second level grievance appeal decision stated
Defendant Tuccino’s decision to reject the package and return to sender was consistent
with Department policy. (Id. ¶ 5.1.) Plaintiff asserts that under DO 914.9.3.5, the decision
to allow or exclude a publication by one complex shall be binding on all other complexes.
(Id.) Plaintiff claims, therefore, that prior decisions by Florence and Eyman complexes to
approve and deliver the updates to Plaintiff were binding on the Tucson complex. (Id.) As
a result, Plaintiff claims Defendant Tuccino followed a custom at ASPC-Tucson not to
follow Department Orders that favor inmates’ rights. (Id.) In support of his claim that
Defendant Tuccino’s actions evidence a custom, Plaintiff claims two other inmates had
property denied and returned to vendors without notification. (Id.)
Plaintiff claims he spoke with ADCRR’s general counsel, who “agreed with
Plaintiff that [Defendant] Tuccino[] refusing to process the . . . update interfered with
Plaintiff[’]s access to the courts.” (Id. ¶ 8.) According to Plaintiff, the general counsel
claimed it was “impossible to create an exhaustive approved[-]vendors list” but she would
add the publisher to the list. (Id.) Plaintiff claims this demonstrates the update did not
“violate[] any legitimate penological interest.” (Id. ¶ 17.)
Plaintiff contends Defendant Tuccino violated the Fourth Amendment by
confiscating and destroying the annual update. (Id. ¶ 11.) He asserts Defendant Tuccino
violated his First Amendment and due process rights to receive legal materials that did not
violate any policy prohibitions. (Id. ¶ 12.) Plaintiff also claims Defendant Tuccino “and by
extension [Defendant] Thornell,” interfered with his “ability to participate in his active and
ongoing Capital appeals litigation” and prevented him from “receiving the research book
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update[] necessary to present any further unknown legal arguments to protect the record
on appeal.” (Id. ¶¶ 10, 14, 16.) Finally, Plaintiff claims Defendant Tuccino “disregard[ed]
policy” and “fail[ed] to provide contraband notice,” which prevented Plaintiff from
challenging and appealing the decision to designate the update as contraband and failed to
“create a record to prove [the update was] returned.” (Id. ¶ 13.)
B. Screening
1. Count One - Individual Capacity Claims
A suit against a defendant in his or her individual capacity seeks to impose personal
liability upon the official. Kentucky v. Graham, 473 U.S. at 165–66. For a person to be
liable in his or her individual capacity, “[a] plaintiff must allege facts, not simply
conclusions, that show that an individual was personally involved in the deprivation of his
civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
To state a valid claim under § 1983, plaintiffs must allege that they suffered a
specific injury as a result of specific conduct of a defendant and show an affirmative link
between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362,
371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore,
a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s
constitutional rights does not impose liability. Monell, 436 U.S. 658; Hamilton v. Endell,
981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must allege facts, not simply
conclusions, that show that an individual was personally involved in the deprivation of his
civil rights.” Barren, 152 F.3d at 1194.
a. Fourth Amendment and Due Process
The Fourth Amendment does not protect an inmate from the seizure of his property.
Hudson v. Palmer, 468 U.S. 517, 528 n.8 (1984); see also Taylor v. Knapp, 871 F.2d 803,
806 (9th Cir. 1989) (holding no Fourth Amendment claim arose from seizure, conversion,
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and destruction of inmate’s assets). Such a claim would arise, if at all, under the Due
Process Clause of the Fourteenth Amendment.
The “Due Process Clause is simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474
U.S. 327, 328 (1986). Although Plaintiff alleges Defendant Tuccino intentionally deprived
him of the updates, even unauthorized and intentional deprivations of property do not
constitute a violation of procedural requirements of the Due Process Clause if a meaningful
post-deprivation remedy for the loss is available. Hudson, 468 U.S. at 533.
Arizona provides a meaningful and adequate post-deprivation remedy through the
prison grievance system, specifically Department Order 909(8.0). Dennison v. Ryan, 522
F. App’x 414, 417–18 (9th Cir. 2013); Aldrete v. Ariz. Dep’t of Corr., 2011 WL 30959, at
*7 (D. Ariz. Jan. 3, 2011). But even if the prison grievance system remedy was not
available, the availability of a common-law tort suit against a state employee constitutes
an adequate post-deprivation remedy. Hudson, 468 U.S. at 534-35; see also Wright v.
Riveland, 219 F.3d 905, 918 (9th Cir. 2000) (both state tort claims and prison grievance
procedures provide adequate post-deprivation remedies). Thus, the Court will dismiss
Plaintiff’s Fourth Amendment and due process claims against Tuccino with prejudice.
Plaintiff had an opportunity to amend these claims, and the Court finds that further attempts
to amend would be futile.
b. Access to the Courts
As a matter of standing for an access-to-courts claim, a plaintiff must show he
suffered an “actual injury”—i.e., “actual prejudice with respect to contemplated or existing
litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis v.
Casey, 518 U.S. 343, 348 (1996) (citation omitted); see also Davis v. Goord, 320 F.3d 346,
352 (2d Cir. 2003) (“Mere ‘delay in being able to work on one’s legal action or
communicate with the courts does not rise to the level of a constitutional violation.’”)
(citations omitted); cf. Silva v. DiVittorio, 658 F.3d 1090, 1104 (9th Cir. 2011) (actual
injury alleged where plaintiff claimed pending lawsuits had been dismissed as the result of
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defendants’ actions).
Moreover, where a prisoner is asserting a backward-looking denial of access
claim—one that seeks a remedy for a lost opportunity to present a legal claim—he must
show, among other things, “the loss of a ‘nonfrivolous’ or ‘arguable’ underlying claim.”
Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007), vacated on other grounds, 555 U.S.
1150 (2009). A plaintiff does not have to show that his claim would have ultimately been
successful on the merits, id., but he must show that it had arguable merit, Lewis, 518 U.S.
at 353 n.3.
Plaintiff does not allege he suffered an actual injury or he was prevented from
asserting a nonfrivolous or arguable claim. His assertion that he was prevented from
presenting “any further unknown legal arguments” is entirely speculative. Thus, Plaintiff
has failed to state an access-to-the-courts claim.
c. First Amendment
Although prisoners have “a First Amendment right to send and receive mail,”
Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995), a single mistake or occasional incident
of mishandling of mail, legal or nonlegal, without any evidence of improper motive or of
actual interference with the prisoner’s right to counsel or access to the courts, does not rise
to the level of a constitutional violation. Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.
1990).
As previously discussed, Plaintiff has failed to demonstrate actual interference with
his access to the courts. Moreover, Plaintiff’s allegations suggest that Tuccino was acting
pursuant to a pre-approved vendor’s list, as opposed to having an improper motive. Thus,
the Court will dismiss Plaintiff’s First Amendment claim without prejudice.
d. Defendant Thornell
Plaintiff’s claim against Defendant Thornell in Count One is premised entirely on
respondeat superior liability. Plaintiff has not alleged Defendant Thornell personally
participated in a deprivation of Plaintiff’s constitutional rights, was aware of a deprivation
and failed to act, or formed policies that resulted in Plaintiff’s injuries. Thus, the Court will
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dismiss without prejudice Plaintiff’s claim in Count One against Defendant Thornell.
2. Count One - Official Capacity Claims
A claim against an individual in his or her official capacity is “only another way of
pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s
office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989) (internal citation omitted).
Plaintiff cannot maintain a lawsuit for damages against ADCRR employees in their
official capacities. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officers sued for
damages in their official capacity are not ‘persons’ for purposes of the suit because they
assume the identity of the government that employs them.”); see also Gilbreath v. Cutter
Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (“[A] state is not a ‘person’ for
purposes of section 1983. Likewise[,] ‘arms of the State’ such as the Arizona Department
of Corrections are not ‘persons’ under section 1983.”) (citation omitted).
Plaintiff may maintain a lawsuit against ADCRR employees in their official
capacity for prospective declaratory and injunctive relief because the Eleventh Amendment
“does not . . . bar actions for prospective declaratory or injunctive relief against state
officers in their official capacities for their alleged violations of federal law.” Coal. to
Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012). But not all
declaratory and injunctive relief is prospective. The exception is intended to prevent
continuing violations of federal law and “does not permit judgments against state officers
declaring that they violated federal law in the past.” P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see also Hindes v. FDIC, 137 F.3d 148,
166 (3d Cir. 1998) (“The type of prospective relief permitted . . . is relief intended to
prevent a continuing violation of federal law.”).
“[I]n an official-capacity suit the entity’s ‘policy or custom’ must have played a part
in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also
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Los Angeles County v. Humphries, 562 U.S. 29, 39 (2010) (the “‘policy or custom’
requirement [in Monell] applies in § 1983 cases irrespective of whether the relief sought is
monetary or prospective.”). A plaintiff must allege, as a matter of law, that the policy or
custom caused him to suffer constitutional injury. Sadoski v. Mosley, 435 F.3d 1076, 1080
(9th Cir. 2006). Liberally construed, Plaintiff has stated a policy or custom claim against
Defendant Tuccino regarding ASPC-Tucson’s custom of not following ADCRR’s policy
regarding prison mail. (See Doc. 16-1 ¶ 5.1.) Thus, the Court will require Defendant
Tuccino to answer Count One in his official capacity only.
Accordingly,
IT IS ORDERED:
(1) Plaintiff’s Motion for Leave to File an Amended Complaint (Doc. 16) is
granted.
(2) Plaintiff’s individual capacity Fourth Amendment and Due Process claims in
Count One are dismissed with prejudice. Plaintiff’s individual capacity access-to-the-
courts and First Amendment claims in Count One are dismissed without prejudice.
(3) Defendant Mendoza is dismissed without prejudice.
(4) Plaintiff’s claims against Defendants Thornell, Martinez, and Tuccino in
their individual capacities in Counts Two and Three are dismissed without prejudice.
(5) Defendant Tuccino must answer Count One in his official capacity only;
Defendant Martinez must answer Count Two in his official capacity only; and Defendant
Thornell must answer Count Three in his official capacity only.
(6) The Clerk of Court must send Plaintiff this Order, and a copy of the
Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request
for Waiver of Service of Summons form for Defendant Tuccino.
(7) Plaintiff’s Request (Notice of Errata) to Correct Addresses on Summons and
Process Receipt (Doc. 17) with respect to Defendant Martinez is denied as moot.
Defendant Martinez was served on April 9, 2026. (See Doc. 19.)
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(8) Plaintiff must complete6 and return the service packets to the Clerk of Court
within 21 days of the date of filing of this Order. The United States Marshal will not provide
service of process if Plaintiff fails to comply with this Order.
(9) If Plaintiff does not either obtain a waiver of service of the summons or
complete service of the Summons and Complaint on a Defendant within 90 days of the
filing of the First Amended Complaint or within 60 days of the filing of this Order,
whichever is later, the action may be dismissed as to each Defendant not served. Fed. R.
Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).
(10) The United States Marshal must retain the Summons, a copy of the
Complaint, and a copy of this Order for future use.
(11) The United States Marshal must notify Defendants of the commencement of
this action and request waiver of service of the summons pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this
Order.
(12) A Defendant who agrees to waive service of the Summons and Complaint
must return the signed waiver forms to the United States Marshal, not the Plaintiff, within
30 days of the date of the notice and request for waiver of service pursuant to Federal Rule
of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service.
(13) The Marshal must immediately file signed waivers of service of the
summons. If a waiver of service of summons is returned as undeliverable or is not returned
by a Defendant within 30 days from the date the request for waiver was sent by the Marshal,
the Marshal must:
a) personally serve copies of the Summons, Complaint, and this Order
upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil
Procedure; and
b) within 10 days after personal service is effected, file the return of
6 If a Defendant is an ADCRR officer or employee, Plaintiff must list the address of the
specific institution where the officer or employee works. Service cannot be effected on an
officer or employee at the ADCRR’s Central Office unless the officer or employee works
there.
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service for Defendant, along with evidence of the attempt to secure a
waiver of service of the summons and of the costs subsequently
incurred in effecting service upon Defendant. The costs of service
must be enumerated on the return of service form (USM-285) and
must include the costs incurred by the Marshal for photocopying
additional copies of the Summons, Complaint, or this Order and for
preparing new process receipt and return forms (USM-285), if
required. Costs of service will be taxed against the personally served
Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil
Procedure, unless otherwise ordered by the Court.
(14) Defendants Thornell, Tuccino, and Martinez must answer the relevant
portions of the Complaint or otherwise respond by appropriate motion within the time
provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
(15) Any answer or response must state the specific Defendant by name on whose
behalf it is filed. The Court may strike any answer, response, or other motion or paper that
does not identify the specific Defendant by name on whose behalf it is filed.
Dated this 13th day of April, 2026.
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